“Human rights” are a major innovation of the modern world. Many trace the inception of this weighty concept to the Magna Carta of the English 13th century. Major statements and variations on human rights have occurred in the French and American Revolution. And in the contemporary era the United Nations has several influential statements about Human Rights. What has not been established is “Person Rights.”

Now here’s the problem: If human rights are defined in such a way as to exclude whole classes of humans, then they are not rightly called “human” rights. The magna carta was infamous for its aristocratic bias, treating social classes as grounds for discrimination. It was better than nothing, but neither was it the kind of robust “human rights” edict we would expect for humanity today. In the U.S., we’ve battled over which humans are endowed with inalienable rights–do slaves count? Are they fully “persons”? What about women? Are they counted even though its “men” who are created equal?

The “human” in “human rights” has developed as a consciously inclusive concept lest people be oppressed or harmed for being the “wrong” color, gender, age, socio-economic class, or in the case of abortion, the wrong developmental stage. The Roe v. Wade decision however forged a stark dividing line between “human” and “person,” or to use its original language, the “potential human.”

There is no longer any medical or scientific debate over what species the human conceptus or zygote is from conception forward. It is homo sapien and therefore it is classed as “human” or more carefully, “human being.” “Personhood” however is a nuanced philosophical concept, useful for many legal issues, but secondary to this case. We can leave aside the question of whether a fetus is a person, and consider, for the sake of argument, that Roe v. Wade has already decided that legal precedent.

So we are left then with “human” rights, and these are precisely where the right to privacy was inferred, as people must have some implicit sense of autonomy and privacy if they are to have “liberty” in any robust sense. Yet, the concept of “human rights” seems to invert, collapsing on itself, when a strict and aggressive distinction is made between which kinds of humans are allowed to have ANY access to human rights. We are not talking about criminals who had their rights, and then abused them. Nor are we talking about rights of access such as driving and marriage, where there is required a certain level of maturation and perhaps some social criteria (like not being related already to one’s would-be spouse, or one must have proof of insurance to get a license, etc.). We are talking about a class of humans that are denied any access to all human rights even though those rights are so universal and natural that we’ve all been in the same situation as those children-in-utero. I’ve never been a black slave, or a woman, but I’ve been a fetus. Wherever a class of humans are excluded from the natural and/or civil rights to “life” then it cannot be rightfully achieved by appealing to human rights. Rather, that argument must turn on person rights.

Admittedly, “person rights” is not a term, but abortion advocates would do well to observe that distinction since it’s terminologically ambiguous and confusing to argue on a human rights basis for the discrimination against a class of humans. There is at least a legal precedent for denying rights to fetuses on the (disputed) grounds that they are not persons. But there is no debate over whether they are humans.

A seasoned veteran of this line of argumentation will likely argue that “human rights” means the rights of human persons. But since that was precisely the line of argument used previously, and wrongly, to discriminate against slaves, its checkered past leave it suspect today. Furthermore, it would be easy enough to just change the phrase to “person rights” or “rights of personhood” and then abandon the term “human rights” to avoid any confusion, it is not clear at all that “human rights” should be understood in exclusion of whole classes of human beings. If there is a legal sense in which “human rights” is defined to include persons, that definition must go so far as to say that it ONLY includes persons–and I don’t know that there is such a legal precedent. Quite the contrary, there are legal precedents already that establish some sense of human rights even to preborn fetuses such as the Laci and Connor law (2004). And if a early-stage human has any human rights, it must have the most basic of these, the prerequisite for any additional rights, the right to life.